Some Don't Distinguish Between Pundit License And Abuse Of Free Speech

WILLIAM SAFIRE - The New York Times

May 23, 1997|WILLIAM SAFIRE

Before rising to the defense of Hillary Clinton, let me do some scandal housekeeping.

On the investigation into espionage and bribery called the Asian Connection: A Justice Department source informs me that some "career professionals" in the criminal division have now joined FBI Director Louis Freeh in urging Attorney General Janet Reno to seek the appointment of independent counsel.

She still refuses to act. That poses a clear challenge to "GROC" - the Government Reform and Oversight Committee of the House - to call key members of the criminal division. The purpose should not be to solicit evidence that the committee should develop on its own but to determine whether the attorney general's refusal is still based, as she claims, on the professional opinion of career officials.

On another front in the same scandal, the House Rules Committee chairman, Gerald Solomon, has written President Clinton to ask federal help in finding and getting testimony from the U.S. citizen Yah Lin "Charlie" Trie, the Little Rock Clinton benefactor who is presumed to be in Beijing.

That raises a few questions: Has the suspected Beijing-Washington go-between already been deposed by the FBI? Is Trie's U.S. passport operative or is he a fugitive? Will the Chinese government cooperate in returning him to face, if not a grand jury, at least the U.S. Congress?

Now to the Whitewater abuses of power:

While professing "full cooperation" with investigators, the Clintons have been fighting a yearlong secret battle to keep from view notes taken by government lawyers. A federal appeals court found that lawyers paid by the public do not share the same confidential privilege as personal lawyers, and ordered the notes be given to the independent counsel. The Clintons, having already turned over such notes affecting staff aides, resist - appealing to the Supreme Court to protect the first lady.

Are they trying to hide a smoking gun? No; my guess is those notes contain some embarrassments, as well as clues to the administration-wide cover-up that will help prosecutors proceed under RICO, the Racketeer Influenced and Corrupt Organizations Act. But Jane Sherburne is too experienced an attorney to jot down statements suggesting criminality, and she knows that all federal officials - even lawyers - must report to Justice any crime they learn about.

Then why claim lawyer-client privilege? Answer: It bought 18 months' delay, and delay is their best defense.

Although Mrs. Clinton has no unique "privilege" to protect her and her alone from criminal investigation, she does have the same rights to defense enjoyed by every U.S. citizen.

Recently a prosecutor was surreptitiously taped in a secret court session telling judges that Mrs. Clinton was among those who could be indicted. ABC's breathless broadcast of the tape was an editorial mistake.

As the momentum of prosecution picks up in coming months, and as executive stonewalling becomes more infuriating, reporters will be tempted to penetrate judicial walls and intrude on grand jury secrecy. We should resist that.

Sound unduly pious? Pundits can predict Hillary's indictment and animadvert on her tendency to lie, as I have, and her husband can wish aloud, as the president has, that he could respond by punching me in the nose - that's all free speech.

Certain judicial proceedings, however, are held in secret for the purpose of protecting the constitutional rights of potential defendants, or of guarding the privacy of witnesses and jurors; eavesdropping on them undermines a genuine privilege, and broadcasting the tape abuses free speech.

What about the tip from within Justice about the changed opinion of career professionals that leads today's essay? That's legit because it advances the story by lighting a fire under the A.G. without jeopardizing anybody's rights at trial.

But using the pilfered sounds of a prosecutor discussing the possibility of any individual's indictment is not legit. Hillary Clinton, who should get what she deserves, in this instance deserves an apology.